상표패러디에 있어서 상표권자와 이용자 간의 이익균형에 관한 고찰

A parody must convey two simultaneous and contradictory messages. It must be understood to be a parody which is based on the original. Consumers must get the correct information from famous trademarks, and as such, these trademarks help enhance people’s health because they recognize and are familiar with the product. However, under Trademark law, or the Unfair Competition law of Korea, it is still possible to infringe a trademark when attempting to use parody. The likelihood of injury to the business’s reputation, or any dilution of the distinctive quality of a trademark, will become an infringement,notwithstanding the absence of confusion as to the true source of goods or services. As such, the dilution theory of trademark protection does indeed confer a property interest stronger than a copyright. To limit the power of trademark owners, we need to borrow the fair use doctrine from copyright law. However, the Trademark law, or the Unfair Competition law of Korea, does not codify the fair use clause like the Trademark Dilution Revision Act of the U.S.A. does. Therefore, we need to enact the fair use clause in Trademark claims to balance the interests between trademark owners and the users of these trademarks. However, sometimes trademark parody would not be protected by the fair use doctrine. In these instances, the parodist can be protected by invoking the constitutional guarantee of freedom of expression. The conflicts that arise between trademark ownership rights and the freedom of expression must be resolved by balancing both competing interests.